33 N.E.3d 1043
Ind. Ct. App.2015Background
- 1901 written indenture: landowners (Stewarts/Bostons) granted Southern Indiana Railway a perpetual right to construct a dam on a previously conveyed railroad right-of-way and to create an "accumulation of water" (pond) on their land, specifying the pond depth be not less than 14 feet and not more than 20 feet; the indenture also required construction/maintenance of a fence and referred to maintenance of the dam/pond.
- Railroad built the dam (Hickory Dam), used the pond for steam engines through mid-20th century; the indenture was recorded in 1945.
- Williamses purchased the adjacent property in 2005; Indiana Rail Road Company (IRR) acquired the rail right-of-way in 2006 and ceased using pond water for railroad purposes.
- Williamses allege the pond now measures ~5 feet deep and sued IRR in 2012 seeking injunction and damages for breach of the 1901 indenture.
- IRR moved for summary judgment arguing (1) the indenture is a personal obligation (not a covenant running with the land), (2) it granted only a "right" (not a duty) to maintain the pond at specified depths, and (3) any breach predated the Williamses’ purchase so the covenant ceased running with the land. Trial court granted summary judgment for IRR; Williamses appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1901 indenture is a covenant that runs with the land | The indenture was a continuing covenant tied to an affirmative easement and was intended to run with the land | The indenture was a personal right/obligation that did not bind successors | Court: Covenant runs with the land — language and circumstances show intent to create a continuing, land-related covenant |
| Whether the indenture imposes an obligation to maintain pond depth (≥14 ft) | The specific depth range shows the railroad agreed to maintain pond between 14–20 ft; "maintain" implies ongoing duty | The indenture merely grants the railroad a right to construct/maintain such a dam, not an obligation to keep pond at specified depth (right ≠ duty) | Court: Indenture contains an obligation to maintain the dam/accumulation of water within the specified depth range; right was exercised and maintenance duty follows |
| Whether a prior breach (before Williamses purchased) terminated the covenant so successors cannot enforce it | Any pre-purchase breach was continuing (not a total, incurable breach); covenant is perpetual/continuing and survives as long as estate/easement exists | A covenant once totally breached ceases to run with the land; prior breach terminated successors’ rights (citing older authority) | Court: Covenant is continuing/perpetual as written; a prior breach does not automatically terminate the covenant — factual issues (e.g., whether breach was cured or is continuing) exist, so summary judgment for IRR was improper |
Key Cases Cited
- Keene v. Elkhart Cnty. Park & Recreation Bd., 740 N.E.2d 893 (Ind. Ct. App. 2000) (affirmative maintenance covenant in a deed ran with the land and required upkeep consistent with the covenant’s purpose, including adapting to modern needs)
- Moseley v. Bishop, 470 N.E.2d 773 (Ind. Ct. App. 1984) (real covenant presumptively survives as long as the estate unless parties limit duration; continuing maintenance obligations can require repair and replacement)
- Erwin v. HSBC Mortgage Servs., Inc., 983 N.E.2d 174 (Ind. Ct. App. 2013) (distinguishes a contractual/right-to-enforce provision from an affirmative duty — used by defendant but found distinguishable by court)
Summary disposition: The court reversed summary judgment for IRR, holding (1) the 1901 indenture is a covenant running with the land, (2) it imposes a duty to maintain the dam and pond depth between 14 and 20 feet, and (3) a prior breach does not automatically extinguish the covenant; material factual disputes remain about breach/cure, so case remanded for further proceedings.